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Position of the Center for Democracy and Technology

30 October 2002

Clarifying the Mission and Powers of ICANN:
Analysis and Proposed Solutions
October 30, 2002

Executive Summary

Continued uncertainty about the scope of ICANN's powers and activities remains a significant obstacle to promoting trust in the organization. As ICANN's Evolution and Reform Committee has recognized, "a clear and bounded mission is an essential pre-condition to addressing the identified problems of ICANN."

While the current reform documents make significant progress towards establishing a definition of ICANN's powers, they do not yet provide adequate security against the possibility that a future Board, if pressured to do so, could leverage ICANN's authority into new areas of activity for which it was not intended, and which most current observers – including the current ICANN Board – would find inappropriate.

In this paper, we offer a package of five improvements to address the serious questions that exist about ICANN's mission and activities. The elements of this package are:

  • Directive of limited action. A statement of ICANN's mission can only be effective if coupled with a requirement that the Board act only when necessary to promote its specified goals, and at no other time.
  • More specific enumeration of ICANN's goals in the ICANN charter and bylaws, emphasizing ICANN's core technical responsibilities. Tying ICANN's mission, in specific ways, to the technical functions it was created to perform, will provide greater clarity and objectivity in what ICANN does.
  • Explicit prohibition of certain activities. A formal declaration by ICANN that it will not establish content regulations, for example, would unambiguously address the worst concerns of some observers.
  • Limits on amendment power. Heightening the requirements of the bylaws amendment process for provisions relating to the scope of ICANN's authority will provide protection against majoritarian impulses by a future Board
  • Enforcement of limitations and rights. ICANN must shore up its procedures for enforcement of its mission, specifically in the Reconsideration and Review processes.

Adopting these reforms now will help place ICANN on a foundation of trust and credibility, smoothing the path for effective reform. We look forward to working with the Board to help ICANN live up to its potential as a manager for the Internet's key central systems.

Introduction

Current and future uncertainty about the scope of ICANN's powers and activities remains a significant obstacle to promoting trust in the organization. While some in ICANN feel there is a reasonable understanding of current activities, other stakeholders argue that ICANN appears to be on a path of divergence from at least some original understandings of the limits on its powers. As a result, many of the concerns about ICANN's policy process and accountability mechanism stem from fears that ICANN will become an unchecked regulator of Internet activity.

Codifying meaningful limits on ICANN's powers would go a long way towards promoting trust and alleviating other debates on ICANN's structure and processes. ICANN and its Evolution and Reform Committee have helpfully embraced the central importance of this issue. As the ERC wrote, "a clear and bounded mission is an essential pre-condition to addressing the identified problems of ICANN."

While the ERC's report to the Board, and the supporting Mission Scope and Principles documents, make significant progress towards defining a scope of power for ICANN, it does not adequately define or limit those powers. In key areas, the current proposals provide so much flexibility that they are not meaningful limits; the current proposals also contain few serious checks or accountability mechanisms to ensure that ICANN stays within the bounds of its mission. More work is needed to define ICANN's powers.

In this paper, we propose new approaches to structural and procedural reform for ICANN that, if adopted, would greatly reassure Internet users, businesses, operators, and governments that ICANN's scope of activity is clear and limited, and would open the door for an efficient, productive future at ICANN.

Why an Effective Mission Statement is Crucial for ICANN

ICANN oversees functions of the global Internet that are critical to reliable network operation. Both DNS and IP addresses are essential for routing and addressing; both are used daily by nearly all Internet users; both are critically important to online communication in general. In the future, ICANN's authority over such resources – particularly its potential to impose obligations on registries, registrars and ultimately end users through its contracts - could be leveraged into broad new policy authorities. Such authorities would have global effect, but, since they would exist outside the immediate influence of governments, might be inadequately tethered to the public's interest. Inappropriately used, these authorities could include regulation of Internet content or denying users due process – activities ICANN was clearly not designed for and inappropriate for an organization with relatively lightweight governance and public accountability mechanisms.

The current ICANN Board has admirably and importantly disavowed any intention to act in such a way. However, it is not clear to what extent future Boards will be bound by their commitment. Future Boards are likely to face significant pressure to expand ICANN's mission and solve other problems, especially given ICANN's central role in a relatively decentralized medium. By providing clear guidance about ICANN's mission now, we can limit such future expansions.

The lack of a clearly constrained mission – today and in the future – also undercuts the present reform effort. So long as the participants in ICANN reform lack a unified understanding of the future scope of ICANN's activities, effective structural reform will be elusive. The better defined the scope of activities, the easier to craft effective policy structures. A vague mission creates needless complexity, and gets in the way of making ICANN efficient, fair, and trusted.

The time for change is now. ICANN is on the cusp of a new movement towards reform, but it has not given necessary attention to the problem of its mission. Unless it does so, and quickly, the new reform effort is unlikely to bring expected benefits, and ICANN is unlikely to gain legitimacy or effectiveness for its activities.

Why ICANN's "Mission and Core Values" Are Not Adequate

Aware of the need for clarity, ICANN's Evolution and Reform Committee has proposed a mission statement based on the idea of "mission and core values" that attempts to provide guidance while avoiding constraints on the Board's future flexibility. Designed for incorporation into the ICANN bylaws, the statement sketches ICANN's mission in the broad terminology of "coordination," then offers eleven values intended to "guide the decisions" of ICANN's various policy bodies.

The problem with such an approach is that it is quite open to interpretation. As a description of ICANN's activities, the term "coordination" is too high-level to be useful. Potentially, the term could be stretched to include almost any activity that was tangentially related to the DNS or other systems within ICANN's oversight. Even when paired with "core values," this kind of mission statement describes the ends, not the means, of ICANN's authority.

For example, future Boards are likely to come under pressure from outside governments (or others) to enforce content rules. A government might request that ICANN impose, through its contracts, a requirement that registries must delete a domain name that is the source of "violent content," or "pornography," or political arguments viewed as seditious by a particular country. Though content control is outside most notions of ICANN's appropriate authority, the proposed mission language would appear to allow it. Content control through domain names could fall within ICANN's broad "coordination" mission. Advocates for the action might claim that content regulation would "significantly benefit from global coordination," (Value 2) and would "take into account the views of government" (Value 11), while "enhancing stability" (Value 1) by removing troublesome material. Obviously, today's Board does not intend to interpret its mission this way, but the proposed bylaws offer no security against the possibility. Even if a proposed action contradicted the mission or core values or both, the proposed bylaws have no enforcement process adequate to prevent the action. Neither the reconsideration nor review processes pose much of an obstacle to a determined Board (neither is binding, and both can be used in a manner to obstruct troublesome requests).

By emphasizing ends rather than means, and reserving a large amount of flexibility to ICANN's Board and other policy bodies, the "mission and core values" approach seeks to keep ICANN unfettered and adaptive to future developments. While some flexibility is needed, the broad flexibility of the current documents is only needed if ICANN is intended as a general oversight body much broader than many now understand. It supposes that ICANN will be asked to play a role in technologies, services, or practices extending well beyond the technical and policy functions ICANN currently performs.

Such a generic role is not intended or appropriate for ICANN. ICANN should not be thought of as a general-purpose manger, but as a custodian for a few specific technical and procedural systems. An unstructured mission gives ICANN opportunities to depart from its custodial role, and to include in its responsibilities every new innovation on the Internet that practically or theoretically affects routing or addressing. Intentionally or no, it places ICANN in the way of the online world's future development.

The need for significant clarification of ICANN's mission is consistent with theories of normal corporate governance.1 Unless strong limits are created at the start, organizations tend to expand their spheres of influence and seek new applications for their expertise. ICANN, however, is not an ordinary company. The same tendency towards growth that benefits other organizations is corrosive to ICANN and to the Internet. The necessary response is to reconceive ICANN's mission away from general-purpose coordination and towards limited action in well-defined areas. This will allow ICANN to focus its energy on improving its performance of the tasks within its authority, rather than on seeking creative new outlets for its energy.

How to repair ICANN's Mission

As stated above, while a description of ICANN's core values may provide helpful guidance to future Boards about ICANN's priorities, they are not alone adequate to meaningfully describe ICANN's responsibilities and authorities.

Improving ICANN's mission statement requires attention at two complementary levels. First, effective substantive limits on ICANN's activities are necessary. Second, procedural safeguards for the promotion and enforcement of those limits should be established.

Substantive Clarification of ICANN's Mission

We suggest three new provisions to address questions about the Board's authority. These provisions are intended to complement the core values proposed by the ERC, developing a structure within which ICANN's future actions can be evaluated against its core values. The provisions also commit ICANN in the future to a principle of limited action – a "first do no harm" approach critical for future innovations to thrive.

  • Directive of limited action. As security against ICANN engaging, even with good intentions and within the apparent limits of its mission, in some premature or privately motivated policy-making, the Board should strengthen its commitment to acting only when necessary. A supposition that inaction is in most cases preferable to premature or misguided action, inserted into ICANN's guiding documents, would provide essential guidance to future ICANN Boards, assurance to key stakeholders, and a greater degree of credibility before the global Internet community. The reform documents proposed by the ERC make some progress on this front; ICANN should not be hesitant to increase the strength and clarity of the ERC's proposed language.
  • More specific enumeration of ICANN's goals in the ICANN charter and bylaws, emphasizing ICANN's core technical responsibilities. Coupled with a directive of limited action must be a concise definition of what activities ICANN should engage in. Any such statement of ICANN's mission will inevitably be open to interpretation. In the absence of absolute clarity, ICANN's mission statement should therefore be constructed to narrow the range of interpretation as much as possible.

    The ICANN charter and bylaws should provide the maximum possible clarity about the goals of ICANN. Given the technical basis of ICANN's authority, precise technical language should be used whenever possible; when it is not possible, precise legal language should be used. Rather than tasking ICANN with "coordination," its mission statement should enumerate specific technical goals such as:

    • Stable interoperability of the domain name system;
    • Safety and integrity of registration data;
    • Availability of accurate Whois data; and
    • Resolution of disputes regarding the registration (as opposed to use) of domain names by particular parties.2

    These goals are a starting point; we look forward to working with members of the technical and policy communities to develop them further, ultimately to find the right language to serve the Internet community's long-term needs for coordination of these key systems.

Enumerating ICANN's goals in such a way improves on the current mission statement's description of "coordination" by returning the ICANN mission to largely technical principles. While maintaining some flexibility for the Board, such language would provide a layer of protection against certain activities – such as content control or the erosion of due process – that lack a foundation in the technical functions ICANN was meant to perform.

A return to basically technical goals is a starting point, but can only be effective when paired with procedural limitations that prevent action outside those goals. Absent amendment of the bylaws, ICANN should be prohibited from engaging in any activity that is not necessary to advance these goals (see directive of limited action suggestion above).3

If, at some future time, ICANN determines that a new function or functions deserves to appear on this list, a supermajority (3/4) of the Board could accomplish this by amending the bylaws to add technical goals (see supermajority suggestions below.).

  • Explicit prohibition of certain activities. ICANN has long expressed its strong disavowal of certain basically inappropriate activities, such as the leveraging of policies that regulate content, unreasonably infringe on users' privacy, or deprive users of due process. A formal declaration along those lines, incorporated into the bylaws, would promote understanding and trust in ICANN among Internet users. The idea of such a declaration has been controversial, but it need not be expansive. ICANN has neither the authority nor the ability to redraft the Bill of Rights or the Declaration of Human Rights, but it should formally disavow certain actions that have relevance to its own mission. We offer the following suggestions for prohibited activities:
    • Activities that impose content regulations on Internet activity;
    • Activities that deprive registrants, operators, or Internet users of their property without adequate due process;
    • Activities that establish new monitoring or surveillance of Internet users;
    • Activities that unreasonably privilege certain Internet users over others on the basis of race, religion, or nationality.

Procedural Safeguards

Substantive limits will have little long-term effect if they can be easily ignored or amended away at some time in the future. For that reason, ICANN must adopt corresponding procedural safeguards in order to assure that its mission, once clearly established, remains stable. This assurance will both catalyze increased participation and provide new energy for the structural changes on the horizon.

Procedural safeguards should include:

  • Limits on amendment power. Codified limitations and rights provide an incomplete guarantee without restrictions on their future amendment. In order to protect the rights of the public in the face of majoritarian impulses by the Board, ICANN should adopt a much heightened amendment process for those charter and bylaws provisions governing the scope of its authority and the rights of users.
  • Enforcement of limitations and rights. Finally, limitations and rights can provide only limited legitimacy without some enforcement mechanism for ensuring that the Board acts in accordance. The reform documents put forward by the ERC make some progress on this front, but need strengthening in key areas to be effective:
    • The decisions of ICANN's Independent Review Panel must be binding on ICANN;
    • The Reconsideration Committee should not be composed only of sitting ICANN Board members;
    • Controls need to be established on the Reconsideration Committee's authority to determine the standing of parties requesting consideration, or to recover costs from requesting parties.

Finally, achieving lasting clarity about ICANN's mission and activities will require ongoing effort by many members of the ICANN community. Metrics for regular evaluation of this effort will be critical for success. CDT looks forward to cooperating with others in the community to develop useful benchmarks and metrics for both the short and long term course of this effort.

Mission Reform Now Will Promote Effective Reform and Boost Participation Throughout ICANN

The experiences of the past three years of ICANN's operation have provided strong evidence for the difficulty of performing these functions without a clear idea of mission or authorized activities. With the energy for reform that currently exists, the opportunity to resolve this pressing question ought not to be missed. If it is, ICANN of the future will continue to run up against the unresolved questions of the past, in a conflict that will not benefit ICANN, the Internet's key operators, or the global community of users. In the interest of continued growth, stability, and effective management, reform of ICANN's mission should occur now. While ICANN appears to be moving rapidly towards adoption of its restructuring package, it should continue its reform efforts in the next few months to resolve these outstanding questions about its powers and authority now and in the future.


Notes:

1. See Tamar Frankel, "Accountability and Oversight of the Internet Corporation for Assigned Names and Numbers: Report to the Markle Foundation." July 2002.

2. Ideally, policy activities touching on such sensitive and important topics as intellectual property rights would be excluded from a mostly-ministerial ICANN. However, because of the unique nature and history of this issue, an exception must be made. We emphasize, however, that this is the exception that illuminates the rule: we believe the best ICANN mission to be a "thin," largely ministerial one.

3. A major question exists regarding the extent of ICANN's authority when a proposed action is not per se necessary to advance its technical mission, but would greatly benefit the global Internet community. Some mechanism should probably exist to permit ICANN to take up such actions. However, ICANN has struggled to find that mechanism. Many observers have proposed the notion of consensus as a possible solution – ICANN would be empowered to take non-necessary actions only when the action has consensus support of the community. Unfortunately, ICANN has not yet established a definition of consensus adequate for such use.

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